Testimony Before House Committee on the Judiciary
Chairman Jerrold Nadler
United States House of Representatives
Sarah Parshall Perry
Senior Legal Fellow
Meese Center for Legal and Judicial Studies
The Heritage Foundation
Statement for the Record
Chairman Nadler, Ranking Member Jordan, and distinguished Members of the committee:
Thank you for giving me the opportunity to submit the following statement for the record in conjunction with this Committee’s hearing on "Revoking You Rights: The Ongoing Crisis in Abortion Care Access." I commend the Committee for holding a hearing on such an important topic. My name is Sarah Parshall Perry and I am a Senior Legal Fellow in the Meese Center for Legal & Judicial Studies at the Heritage Foundation.
Today's hearing demands answers to the following questions:
1. Who ought to make abortion policy? and
2. What should that policy be?
Who ought to make abortion policy?
Before the Supreme Court in the Dobbs v. Jackson Women's Health case—in which a draft majority opinion has now been inappropriately leaked to some renown—is the question of what is the proper venue for debating and deciding contentious issues pertaining to abortion: the legislature or the judiciary?
Unless the Constitution clearly says otherwise, the answer is clear. The American people and their elected representatives have authority to wrestle with these matters and decide on the answers. When the Supreme Court of the United States takes that authority away from the people without a constitutional authorization, the Court undermines its own credibility and legitimacy.
Roe v. Wade was just such a decision.
A. Roe Is Bad Law
For 185 years after the ratification of the Constitution, all states in the nation regulated abortion as they saw fit. The issue of abortion was properly left to the states under the 10th Amendment to the Constitution, which dictates that any matter not delegated to Congress is reserved for the states or the people to decide. By the mid-1960s, 44 states banned abortion except to save the mother’s life. Alabama, Colorado, New Mexico, Massachusetts and the District of Columbia permitted abortion if the life or physical health of the woman was in jeopardy, and Mississippi allowed the procedure in cases of life endangerment or rape; Pennsylvania prohibited all abortions.
Then, in 1973 with its decision in Roe v. Wade, the Supreme Court injected itself and imposed an abortion regime far more radical than the American people had ever chosen for themselves, in the name of a constitution that says nothing about abortion, and without explanation for its sudden judicial interference.
In Roe, the Supreme Court held that its previously created “right to privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” This holding, and the Court’s rules for implementing it, effectively invalidated abortion laws of all kinds passed by every state legislature in all the previous years. Today, Roe remains one of the most controversial judicial decisions in American history.
To say the Court and the author of Roe's majority opinion, Justice Harry Blackmun, strained interpretation to divine a right to abortion in the Constitution would be an understatement. Roe and its progeny, including most prominently Planned Parenthood v. Casey," relied on cases involving everything from the right to marry a person of a different race, to the right to marry while in prison, the right to obtain contraceptives, the right to reside with relatives, the right to make decisions about the education of one's children, the right not to be sterilized without consent, and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures. All were applied as evidence of the fact that the right to obtain an abortion was essential to our concept of ordered liberty.
Yet those attempts to justify abortion as a right grounded in our Constitution by somehow appealing to broader rights to autonomy and one's “concept of existence” have been recognized as untenable for the past 50 years by both conservative and liberal legal scholars, who have criticized Roe. In Griswold v. Connecticut, Roe's predecessor, Justice William Douglas wrote for the majority, stating that the Constitution's Bill of Rights not only protects “specific rights” but also has “penumbras, formed by emanations from those guarantees.” Justice Blackmun later relied on these "penumbral emanations" to collectively create a separate, free-standing right to privacy.
His theory has been routinely and roundly derided.
Many of Roe's most severe critics are self-identified liberals who support abortion rights. They include Justice Ruth Bader Ginsburg, who criticized the legal foundations of Roe v. Wade, and remarked that its wholesale repudiation of state abortion restrictions went too far, too fast. She called It a "heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict."
Kermit Roosevelt, a professor at the University of Pennsylvania, has written that "as an example of the practice of constitutional opinion writing…Roe is a serious disappointment." He added, "As a constitutional argument, Roe is barely coherent…The Court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions..."
Constitutional lawyer and Harvard law professor Alan Dershowitz has said, "I strongly support a woman's right to choose but Roe vs. Wade was a disaster."
Professor John Hart Ely, who taught at Yale Law School at the time, wrote in 1973 that the “very bad” Roe decision “is not constitutional law, and gives almost no sense of an obligation to try to be.”
And perhaps most convincingly, Justice Harry Blackmun's own law clerk Edward Lazarus, wrote:
As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather. . . .
What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent. ...
The proof of Roe’s failings comes not from the writings of those unsympathetic to women's rights, but from the decision itself and the friends who have tried to sustain it. Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms."
The Supreme Court is capable of constitutional error. Decisions like Dred Scott, Plessy, or Korematsu make this abundantly clear. But they likewise prove that stare decisis--the rebuttable presumption that a court will follow its own past decisions--is not an "inexorable command." Precedent can--and sometimes must--be overruled. Indeed, some of our nation's most significant Supreme Court cases have overruled prior precedent. I don't have time enough to address a sizeable list of these decisions today, but among them are Brown v. Board of Education, repudiating the “separate but equal” doctrine, which had allowed States to maintain racially segregated facilities; Obergefell v. Hodges, recognizing a right to same-sex marriage; Citizens United v. Federal Election Commission, recognizing the right to engage in campaign related speech; and West Virginia Board of Education v. Barnette, holding that public school students could not be compelled to salute the flag in violation of their sincerely held beliefs.
The Court has established certain processes for determining whether a precedent should be overruled. It asks, (1) first, whether that precedent was wrong in the first place; and (2) second, whether “less harm will result from overruling the decision than from allowing it to stand."
The leaked draft opinion by Justice Samuel Alito in the Dobbs case provides the answer:
"Yes, to both."
B. Dobbs Draft Opinion Rights a Constitutional Wrong
In their briefing and oral arguments, all attorneys in the Dobbs case rejected as unworkable any “half measures” that would substitute something else for the Roe-Casey standard. In other words, they argued, Roe and Casey must either stay or go. And notably, while they liked the result in Roe and Casey, since the leak of the draft opinion in Dobbs, none of the liberal commentators has included praised or supported the soundness of the reasoning employed by either the Roe or Casey majority.
The Roe v. Wade that most Americans today say should be retained simply does not exist. Nearly 40 percent of Americans (and more than 50 percent of those under 30) believe that Roe involved school desegregation or environmental protection, or simply do not know what the case involved, a sad commentary on the state of civics education in our country. Many of those who can at least identify the right issue falsely believe that Roe legalized abortion only in the first three months of pregnancy.
A poll released just days before the draft opinion was leaked found that while a majority of Americans say that Roe should not be overturned, a majority also support banning abortion after 15 weeks, a limitation that Roe does not allow. And Politico's poll, conducted after its own revelation of the Dobbs draft opinion, revealed that support for retaining Roe has fallen to just 50 percent.
Without even trying to defend Roe and Casey as legitimate interpretations and applications of the Constitution, abortion advocates want to keep what those decisions created: a national policy of nearly unrestricted abortion on demand that most Americans oppose. What's more, their advocacy of one of the world's most aggressive abortion regimes runs contrary to the weight of public opinion.
Roe v. Wade has become synonymous for the right to obtain an abortion. But someone can support the right to obtain an abortion without believing that right is protected by the Constitution. After Roe, the fight for abortion rights will revert to an openly political struggle--something that in truth, it always was prior to Roe. In returning to neutral on abortion and rectifying its past constitutional error, the Supreme Court is not closing the doors on the abortion debate. Instead, it is throwing them open.
Many Americans support the nation’s extreme abortion policy, and many others oppose it. The issue for the Supreme Court to decide, however, is whether the Constitution of the United States requires it. That answer is resoundingly, no, and the Court seems poised to right a long-standing constitutional wrong.
C. There Is no Slippery Slope if Roe Goes
The Left now stridently claims that abandoning Roe and Casey will necessarily endanger other “privacy rights,” like those on which Roe relied for its constitutional justification. This is an old argument. The plaintiffs challenging the abortion ban in Roe, for example, argued that the Court should create a right to abortion because it had already created other unwritten rights. The Court rejected the comparison, saying that the presence of the unborn child makes abortion “inherently different” from (and possibly not even related to) other privacy rights.
The distinction lies in what both the Roe and Casey Courts acknowledged: abortion destroys what those decisions call “potential life.” In the Dobbs case, the law at issue calls it the life of an “unborn human being.” As Justice Alito wrote in the draft opinion, none of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore wholly distinct from one another.
Perhaps anticipating the liberal argument that overruling Roe and Casey would endanger those “inherently different” privacy rights, Justice Alito in the Dobbs draft opinion repeatedly makes something crystal clear: “To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Should the Court's many pronouncements on the "different-ness" of abortion fail to settle the debate, let's examine in particular the Court's decision in Loving v. Virginia which has been recently trotted out as one of the Court’s first sacrificial lambs if Roe goes. In Loving, the Court held that anti-miscegenation statutes adopted by Virginia to prevent marriages between persons based solely on racial classifications violated the Equal Protection Clause of Fourteenth Amendment. Loving came down when less than 20% of Americans approved interracial marriage as a social matter. Because more than 94% of Americans approve of interracial marriage today, it is pure fearmongering to suggest that any state will pass an anti-miscegenation law should Roe be overturned. What's more, the Loving decision invalidated bans on miscegenation first and foremost on Equal Protection grounds, as an illegal racial classification, with the due process right to marriage only a secondary rationale. In the incredibly unlikely event the Court were to revisit the question of interracial marriage, the court would certainly preserve Loving, most likely by relying on its equal protection holding.
Should Roe be overturned, it is also fanciful to think that women will be imprisoned for seeking an abortion. Legal protections against abortion in the U.S. before Roe v. Wade were not enforced in this way. Nor were laws in the 19th century, even as medical advances made clear that life begins at conception and every U.S. state outlawed abortion. Nor did the Common Law of England equate abortion with capital murder and treat the mother accordingly. Pro-choice advocates pretend that the necessary outcome of protecting unborn children in law is prison sentences for women, but this flies in the face of both history and the stated goals of pro-life organizations. Pregnant women are also victimized by the abortion industry, and any attempt to impose jail time on them for abortions is bad policy and a political non-starter. Post-abortive women deserve compassion and healing, in line will the pro-life mantra to always "love them both."
What Should Abortion Policy Be?
Government at all levels should do whatever the Constitution permits to protect life at all stages, from conception onwards. States should be leading the charge, as they were before the Supreme Court's exercise of raw judicial power In Roe.
A. An Unborn Child Deserves Protection
When asked about the leaked draft opinion before his departure on Air Force One recently, President Joe Biden remarked: "I mean, so the idea that we’re going to make a judgment that is going to say that no one can make the judgment to choose to abort a child based on a decision by the Supreme Court, I think, goes way overboard."
The President recognizes what most Americans know in their hearts: abortion kills a child.
The United States is one of only seven nations that allows elective abortions after 20 weeks of pregnancy, and keeps company with Communist China and North Korea. And our abortion regime is far more permissive than under either the common law or statutes during centuries of English or American law.
Maternal risks from abortion increase proportionately relative to gestational age. Potentially fatal complications from abortions include “vaginal or intra-abdominal hemorrhage … infection … incomplete removal of the remains of the aborted baby, damage to the cervix, uterus, or other pelvic or abdominal organs … anesthetic reactions or overdoses, amniotic fluid, septic, or thrombotic embolisms, cardiac, or cardiovascular events.” Post-abortive women have approximately an 80% higher risk of experiencing mental health issues, including suicidal tendencies and substance abuse.
In addition, the assumption that abortion is the safer option for women than carrying a child to term ultimately rests on incomplete data. The federal government as well as 22 states do not require abortion providers to report critical data on post-abortion complications. This inevitably skews abortion activists’ numbers, especially when over a quarter of all abortions in the U.S. are performed in California, which is one of the states that doesn’t require abortion providers to report data.
Likewise, according to data collected in 2019, there were no states that required doctors, coroners, or emergency rooms that don’t provide abortions to report abortion-related deaths. So, if a woman goes to an emergency room with abortion-related complications and dies, the hospital is not required to report it as an abortion-related death. That skews abortion-related mortality rates.
In addition, the abortion method used after 15 weeks, known as dilation and evacuation, is a barbaric procedure, dangerous for the maternal patient, and demeaning to the medical profession. And facts about fetal development revealed in recent years were unavailable to the Supreme Court in Roe or even in Casey. Modern medicine reveals, for example, that a 15-week-old unborn child has all major organs, moves all fingers separately, exhibits a preference for right or left-handedness, and is responsive to pain.
In Roe, the Supreme Court recognized that the “developing young in the human uterus” makes abortion “inherently different” from other rights, and referred to the unborn “child,” “prenatal life,” “fetus,” “embryo,” and “unborn children.” These were not random word choices, but deliberate descriptions aimed at specific identification of an unborn human being. The state, Justice Blackmun wrote, has an “important and legitimate interest” in protecting human beings before birth. Only four years after Roe, the Supreme Court held that the right to abortion “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment” through certain kinds of legislation.
The pro-life movement ought to continue to work in defense of human life and help pregnant women in need through readily available resources, including maternity homes, pregnancy resource centers, adoption and foster care agencies, and government programs designed to compassionately support them before, during, and after the birth of their babies.
B. Other Considerations
In the wake of the Dobbs opinion leak, a steady demonstration has emerged of the lengths to which abortion advocates are willing to go to keep their defective judicial gains in Roe. For years, they have turned Supreme Court nominations into combat reminiscent of ancient Rome. They have advocated destroying the Supreme Court’s independence through Court-packing and have threatened to gut the Senate by eliminating its practice of unlimited debate. But perhaps the most shocking development in the battle to salvage Roe’s expansive abortion-on-demand regime is this chamber’s advancement of the Women’s Health Protection Act--a bill so extreme and unconstitutional that it leaves Roe v. Wade's policy-driven extremism in a cloud of dust.
For abortion's defenders, it seems Roe is no longer extreme enough.
This Chamber’s Advancement of the WHPA Indicates a Loss of Direction on Constitutional Principles
The misnamed Women’s Health Protection Act (WHPA) would prohibit any government anywhere in America, down to the most remote town, from doing anything that might make the performance of abortions in the slightest bit less likely, while carving out and discarding any religious freedom exemptions. It would also require every government everywhere to repeal any statutes or regulations that may already exist that could potentially have the effect of limiting abortions.
This has nothing to do with Congress attaching conditions to money that it gives to the states. Nor is it Congress pre-empting state or local regulation by enacting its own. In Roe and Casey, the Court claimed that the right to obtain an abortion resides in the 14th Amendment, a position that even scholars who support that result cannot defend. The WHPA refers to a “constitutional right to terminate a pregnancy,” but that “right” will not exist if Dobbs corrects the Roe and Casey error. In other words, while the 14th Amendment gives Congress authority to enforce such a right if it existed, after Dobbs there would be nothing for Congress to enforce.
Additionally, Congress lacks the authority to enact the WHPA. The bill does not regulate abortion services; it attempts to regulate how state and local governments do so. That constitutional difference is a violation of the 10th Amendment, which specifies that Congress may exercise only the powers enumerated in the Constitution itself, and the states may exercise the rest.
The Roe policy of virtually unrestricted abortion is more permissive than all but seven other nations anywhere in the world. And a large majority of Americans have consistently said that many abortions now permitted under Roe legalized should, in fact, be illegal. But that did not prevent this Chamber's advancement of a bill extending even beyond Roe's boundaries.
The Women’s Health Protection Act would, retroactively and prospectively, prevent any government, at any level, from enacting or enforcing “any law, rule, regulation, standard, or other provision having the force and effect of law that conflicts” with any provision of the act. No one with any knowledge of our system of government, let alone those elected to public service who have sworn to uphold and defend the Constitution, could possibly think that Congress has the authority to impose such a radical policy. Yet at the behest of leftward-lurching progressives, that is what they attempted, but failed to even secure a majority, to do.
The Intimidation and Harassment of SCOTUS Justices Indicates the Inflammatory State
At first glance, two provisions of the U.S. criminal code may well apply to protestors outside the homes of the conservative Supreme Court justices rumored to be joining Justice Alito in the Dobbs majority opinion. It seems clear that they are violating 18 U.S. Code § 1507, “Picketing or Parading,” which states:
Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge … shall be fined under this title or imprisoned not more than one year, or both.
Protestors may also be violating a related law, 18 U.S. Code § 1503, “Influencing or injuring officer or juror generally,” which states, in part:
Whoever corruptly, or by threats, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or office in or of any court of the United States…can potentially be found guilty and face “imprisonment for not more than 10 years, a fine under this title, or both.
This language is without caveats. It says nothing of unpalatable opinions that might provide a defense against enforcement of these criminal statutes. So, if protesters were not trying to intimidate and influence conservative justices, why were they there?
Yet these developments represent the lengths to which abortion’s proponents will go to protect a constitutional right that cannot be found in the Constitution. They are emblematic of a totalitarian way of thinking that erases the distinctions between a justice’s private and public life, and represent an attempt to bring public pressure to bear on a decision-making process that must be controlled, evidenced-based, rational, and confidential, if our judiciary has any hope of maintaining its independence.
The Supreme Court Leak is An Internal Matter
In 1979, ABC News Supreme Court correspondent Tim O’Brien went on air with reports predicting the outcome of two of the Court’s decisions that were days away from release. Chief Justice Warren Burger launched an inquiry into whether anyone at the Court had breached protocol, and a Government Printing Office employee involved in type setting was transferred to a different division.
In the same fashion, the Dobbs leak was brought about by an unscrupulous individual working to subvert the Supreme Court’s 235-year tradition of confidential deliberations. Democratic candidates and certain Democratic officials see the leak as a much-needed infusion of energy into their midterm election efforts. Representative Sean Patrick Maloney (D-N.Y.), leader of the House Democratic Campaign Committee, for example, has called abortion rights “the central choice In the 2022 election.” And more than just re-agitating demands for increased abortion access, the leak has prompted renewed calls for Court reform efforts, whether by packing the Court, or demanding an ethics code for Supreme Court Justices--giving left-leaning politicians a rare two-for-one shot to advance pet policies heading into midterms.
A hundred years ago, Chief Justice William Howard Taft acknowledged that while criticism (and strident calls for reform) of the courts will always be inevitable, the judiciary must be left to manage its internal affairs, both to promote informed administration of the courts and to ensure their independence from the other political branches of government.
It is one of the chief merits of the American system of constitutional law that all of the powers entrusted to government are divided into three branches and that the functions appropriate to each of these branches of government are vested in separate bodies of public servants. But this system—as the Supreme Court has held—requires for its protection that the lines that separate and divide those branches be broadly and clearly defined. Interference with the Supreme Court under the auspices of changing its internal affairs and plugging a leak, would threaten both the independence of the judiciary and the separation of powers and would irreparably blur those lines.
To pursue Court reform with increased zeal now would not only doubly injure justices who are already reeling from the impact of such a fundamental betrayal of confidence but would guarantee that the public recognizes these efforts as the desperate and naked politically motivated maneuvers that they are, a last-ditch effort at influence as Roe hangs by a thread on the edge of its grave.
The Supreme Court’s abortion decisions have distorted our Constitution and done nothing to settle the abortion debate in our country. They have poisoned our laws, our courts, and our culture. Since Roe v. Wade, the courts have been forced to articulate vague and unworkable standards that do not account for advances in science, changing public sentiment, or the status and independence of women. The Dobbs leaked draft opinion rightly characterizes Roe as having made a grave constitutional error, and the Court appears poised to send the matter of abortion back to the states so that the people can govern themselves by debating and regulating it as they see fit. In admitting that Roe v. Wade was a mistake, and that abortion regulation should never have been taken away from the American people, the Supreme Court will not be making abortion illegal by itself. Instead, the people “act through their immediate representatives,” and will wrestle with difficult issues, work out compromises, and use elections to reset the political chessboard. This is how our system of representative government works.
During oral arguments In Dobbs, Justice Sonia Sotomayor asked: How can the Supreme Court “survive the stench that this creates in the public perception that the Constitution and its reading are just political acts”?
But the answer is, how can the Court survive WITHOUT overruling Roe and Casey—political decisions, that pulled a Constitutional right to abortion not from the Constitution, but out of thin air?
I thank the committee for consideration of this statement.
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